Circular 2016/7W: Issuing a Notice of Employee Representational Rights in accordance with the Fair Work Act 2009 - implications of the Uniline decision

1. A recent decision of a Full Bench of the Fair Work Commission (FWC) may have implications for agencies regarding the issuing of a Notice of Employee Representational Rights (Notice) during bargaining.

2. This Circular outlines the implications of this decision for agencies currently in bargaining.

Issue

3. The Fair Work Act 2009 (the Act) requires an employer that will be covered by a proposed enterprise agreement to provide employees with a Notice as soon as practicable, and no later than 14 days after the 'notification time' for the agreement 1.

4. In Uniline Australia Limited [2016] FWCFB 4969 (Uniline),a majority of a FWC Full Bench found that the late issuing of a Notice, in contravention of the 14 day requirement, renders the Notice invalid and the agreement incapable of being approved by the FWC.

5. The majority in Uniline provided guidance to employers for dealing with a potentially invalid Notice.

6. Examples of a potentially invalid Notice include where the employer discovers an error in its wording or does not issue the Notice within 14 days of the notification time. We are aware that some agencies re-issued their Notice to correct errors or address other technical issues.

7. On the majority's approach, an employer in such circumstances can 'cease bargaining ... and … agree to bargain or initiate bargaining afresh', thereby triggering a notification time and new 14 day period in which a fresh Notice may be validly issued.

8. Despite that guidance, the majority's decision does not indicate what action, if any an employer is required to take to 'cease bargaining … and … agree to bargain or initiate bargaining afresh' for the purpose of re-issuing a Notice.

Implications for Agencies

9. It is important for all agencies to review their existing Notice for content, form and timing issues.

10. If there has been a re-issuing of the Notice, the agency should examine the circumstances of the re-issuing to ensure it is consistent with the approach in Uniline. That is, whether the surrounding circumstances were consistent with 'bargaining afresh' to enable the re-issuing of a valid Notice.

11. Where an agency believes that there may now be an issue around their Notice or its circumstances, Agencies are encouraged to discuss their proposed approach with APSC Relationship Manager. It may also be prudent to seek advice from legal representatives.

Does the Uniline decision impact on protected industrial action?

12. The Uniline decision is not expected to have any impact on protected industrial action. In a recent decision of the FWC, Maritime Union of Australia vs Maersk Crewing Australia Pty Ltd [2016] FWCFB 1894, a Full Bench unanimously found that the FWC has the power to approve a protected action ballot order in circumstances where the employer has not issued a valid Notice.

Further information and advice

The 'notification time' is generally, though not always, the time the employer agrees to or initiates bargaining for a proposed enterprise agreement.

Connect with APSC

The Australian Public Service Commission (APSC) is a central agency within the Prime Minister and Cabinet portfolio. The Commission supports two statutory office holders: the Australian Public Service Commissioner - who is also agency head - and the Merit Protection Commissioner. Their functions are set out in sections 41(1) and 50(1), respectively, of the Public Service Act 1999.